PETERSON v MILLS [2021] NZCA 534
The application for recall is declined because the grounds advanced amount to an attempt to re-litigate matters already adjudicated and do not meet the exceptional-circumstances threshold for recall; the purported Calderbank letter is a privileged communication and inadmissible.
Source-derived case information.
- Citation
- [2021] NZCA 534
- Parties
- First Applicant: Carl James Peterson; Second Applicant: Lynette Joy Mills; Third Applicant: Peterson/Mills Partnership; Respondent: Graham Howard Mills
- Court
- Court of Appeal
- Jurisdiction
- New Zealand
- Judgment Date
- 14 October 2021
- Procedural Posture
- Application for Recall of Judgment / On the Papers
- Outcome
- Application for recall of the Court's judgment of 13 May 2021 declined; applicants ordered to pay costs to respondent
- Legal Topics
- Recall of Judgment, Sealed Judgment, Calderbank Offer, Privilege, Re Litigation
Source-derived case record
Summary, issues, holding and outcome
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Parties
Carl James Peterson
First Applicant
Lynette Joy Mills
Second Applicant
Peterson/Mills Partnership
Third Applicant
Graham Howard Mills
Respondent
Procedural Posture
Application for Recall of Judgment / On the Papers
Legal Issues
- 1 Whether a sealed judgment can be recalled
- 2 Whether the applicants' grounds amount to exceptional circumstances warranting recall
- 3 Whether the alleged Calderbank offer is admissible or is a privileged communication
Ratio Decidendi
The application for recall is declined because the grounds advanced amount to an attempt to re-litigate matters already adjudicated and do not meet the exceptional-circumstances threshold for recall; the purported Calderbank letter is a privileged communication and inadmissible.
Court Disposition
Application for recall of the Court's judgment of 13 May 2021 declined; applicants ordered to pay costs to respondent
Orders
- Application for recall of the judgment of 13 May 2021 declined.
- Applicants must pay the respondent one set of costs for a standard application on a band A basis with usual disbursements.
Full Case Text
Judgment text and source record
1 paragraphs
PETERSON v MILLS [2021] NZCA 534 [14 October 2021]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA35/2021[2021] NZCA 534BETWEEN CARL JAMES PETERSONFirst ApplicantLYNETTE JOY MILLSSecond ApplicantPETERSON/MILLS PARTNERSHIPThird ApplicantAND GRAHAM HOWARD MILLSRespondentCourt: French and Courtney JJCounsel: Applicants in PersonJ R Sparrow for RespondentJudgment:(On the papers)14 October 2021 at 9 amJUDGMENT OF THE COURTA The application for recall of this Court's judgment of 13 May 2021 (Petersonv Mills [2021] NZCA 179) is declined.B The applicants must pay the respondent one set of costs for a standardapplication on a band A basis with usual disbursements.____________________________________________________________________REASONS OF THE COURT(Given by French J)[1] On 13 May 2021 we delivered a judgment declining the applicants' applicationfor leave to appeal.1 The judgment was sealed on 29 June 2021.[2] On 22 July 2021, after trying unsuccessfully to appeal our decision in theSupreme Court and filing applications in the District Court, the applicants filed anapplication in this Court for recall of the judgment. The application is opposed.[3] It is well established that in exceptional circumstances a sealed judgment canbe recalled.2 However, we are satisfied that even if our judgment had not been sealed,none of the numerous grounds advanced in support of the application would warrantrecall.3 They are essentially a thinly disguised attempt to re-litigate matters that havealready been the subject of adjudication before and/or were already taken into accountby us.[4] The only "new" matter sought to be raised is the belated discovery of what issaid to be a Calderbank offer of settlement made by the respondent. However thewritten offer exhibited to the applicant's affidavit is not a Calderbank letter but aprivileged communication which should not have been put before the Court.[5] The application for recall is accordingly declined.[6] The applicants are ordered to pay the respondent one set of costs for a standardapplication on a band A basis with usual disbursements.Solicitors:Holland Beckett Law, Tauranga for Respondent1 Peterson v Mills [2021] NZCA 179.2 Wagg v Squally Cove Forestry Partnership [2013] NZCA 612 at [4].3 Saxmere Co Ltd v Wool Board Disestablishment Co Ltd (No 2) [2009] NZSC 122, [2010] 1 NZLR76 at [2], citing Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC) at 633.